Citation NR: 9632581
Decision Date: 11/20/96 Archive Date: 12/02/96
DOCKET NO. 91-22 310 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
2. Entitlement to permanent and total disability rating for
pension purposes.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. L. Wright, Associate Counsel
INTRODUCTION
The veteran had active service from June 1969 to June 1971.
This appeal arises from an October 1989 rating action of the
Newark, New Jersey, Regional Office (RO) which denied service
connection for PTSD and a total disability rating for pension
purposes. The veteran appealed these issues. In September
1991, the Board of Veterans’ Appeals (Board) remanded the
claims in order for the RO to develop evidence of the
veteran’s claimed stressors. The case was remanded again in
April 1993 in order for the RO to develop medical evidence
and provide the veteran with pulmonary and psychiatric
examinations. The case has returned for adjudication.
In a U. S. Department of Veterans Affairs (VA) Form 1-9 dated
in April 1990, the veteran filed a notice of disagreement
with the RO’s denial of service connection for sarcoidosis in
October 1989. However, the veteran withdrew this claim at
his hearing on appeal in February 1991. In a VA Form 1-9
received in September 1990, the veteran noted his
disagreement with the RO’s July 1990 denial of service
connection for avascular necrosis in his left shoulder. The
Board notes that the RO has failed to issue a statement of
the case concerning this issue. At his hearing on appeal in
February 1991, the veteran raised the issue of service
connection for substance dependence. This issue has not been
adjudicated. The Board finds that the issues discussed in
this paragraph are not properly before it at the present time
and are not inextricably intertwined with the issues on
appeal. Therefore, the Board refers these matters to the RO
for appropriate action.
The issue of entitlement to a permanent and total disability
rating for pension purposes is discussed in the remand
section of this decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in effect, that he suffered stressors
outside normal human experience while serving in the military
during the Vietnam War, and as a result, currently has PTSD.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the veteran's claim.
FINDINGS OF FACT
1. All available relevant evidence necessary for an
equitable disposition of the veteran's appeal has been
obtained by the RO.
2. The veteran was not engaged in combat during his service
in Vietnam.
3. Objective demonstration of an inservice stressor has not
been shown.
4. The veteran does not currently suffer from PTSD as a
result of his wartime experiences in Vietnam.
CONCLUSION OF LAW
PTSD was not incurred in or aggravated by service. 38
U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 1991); 38 C.F.R.
§ 3.304 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background.
A review of the veteran’s service records reveals the
following pertinent information. At the time of his
enlistment into military service in May 1969, the veteran
noted that he had not had frequent or terrifying nightmares,
depression or excessive worry, or nervous trouble. On
examination, his psychiatric evaluation was noted to be
normal. The veteran’s service history noted that he had
participated in counter-insurgency operations against the
Viet Cong and North Vietnamese Army while stationed in the
Republic of Vietnam. His record of service noted that he was
utilized as a shore party man and engineer equipment
operator. The veteran was also noted to have received the
Vietnamese Service Medal with “1*” and the Vietnamese
Campaign Medal with 1960 device. On his separation
examination in May 1971, the veteran’s psychiatric evaluation
was again found to be normal.
A VA discharge summary for a period in December 1974 noted
that the veteran had been admitted intoxicated after making
homicidal and suicidal threats. He also complained of
headaches and hallucinations. It was noted by history that
the veteran had previously been admitted for a drinking
problem. On physical examination, the only defect noted was
a slightly enlarged liver. After becoming sober, the
veteran’s hallucinations subsided and he denied any homicidal
or suicidal ideation. He refused treatment for his alcohol
problems and was released. The diagnoses were chronic
alcoholism and anxiety neurosis.
The veteran was again hospitalized from February 1988 to
March 1988, as recorded by VA discharge summary, for an
inpatient PTSD program. The veteran acknowledged a 15 year
alcohol problem and an 18 year drug problem. The veteran
claimed that he had been in combat during the Vietnam War and
had seen people get blown up. He admitted to having
blackouts, flashbacks, and nightmares. The veteran had
attempted suicide by jumping out of a window, but was stopped
before actually jumping. On mental examination, the veteran
was alert, coherent, and relevant. His affect was blunt. He
admitted to having suicidal thoughts, but had no plan or
intent to do anything. His memory and mental grasp were
good. The veteran was oriented to time, place, and person.
At the time of his discharge, the diagnoses were given on
Axis I for alcohol dependence, PTSD, and mixed substance
abuse; and on Axis III for sarcoidosis, presbyopia, dental
caries, gingivitis, dermatitis of the legs, and upper
respiratory infection.
In October 1988, the veteran was afforded a VA psychiatric
examination. The veteran claimed a history of participating
in three firefights while serving in Vietnam. The veteran
acknowledged that he had not been wounded. He asserted that
he had seen wounded and dead bodies and was frequently
exposed to rocket, mortar, and sniper fire. He claimed that
he had experienced a severe trauma while riding in a convoy
of trucks to “Camp Baldy” in 1970. The veteran related that
his convoy had been ambushed and he had heard bullets go by
his head. He claimed that a buddy of his named “[redacted]” had
been talking to him when he was hit by bullets and killed.
The veteran felt that if his buddy had not been hit, the
bullets would have hit him. After leaving Vietnam, the
veteran asserted that he had been stationed at “Camp
Lejeune.” It was during this time that the veteran claimed
that he started to experience symptoms of anxiety, tension,
tremors, poor concentration, sleep disturbances (night sweats
and nightmares), agitation, and confusion. He also
maintained that he started to have intrusive memories of
combat that would halt his daily activity. These intrusive
thoughts were claimed to have been caused by loud noises,
helicopters, and violence on television. The veteran
claimed, at the time of the examination, that he was
persistently tense, irritable, tremulous, socially withdrawn
and aggressive. He had a history of alcohol and drug abuse.
He asserted that he had lost over 40 jobs since leaving
service due to his drinking and resentment of authority. The
veteran claimed that he had been unemployed since February
1988. He currently was separated with one child and lived
with his mother. He had only been treated for PTSD from
March to May 1988, but currently attended Narcotics
Anonymous.
On examination, the veteran was alert, well oriented, tense
and anxious, with tremulous hands and voice. His affect was
constricted. The veteran’s mood was depressed and he, at
times, struggled to hold back tears. There was no
disturbance of his stream of thought or perception. However,
his concentration was impaired and his judgment was poor. He
was compromised under stress, leading to agitation and
aggressiveness toward others. It was noted that the veteran
had a criminal record. The diagnosis was severe chronic
PTSD.
In August 1989, the VA received a response from the
Environmental Support Group (ESG) which noted that it was
unable to locate any information concerning the veteran’s
stressor. The ESG verified the veteran’s service in Vietnam
and that his primary assigned duty was Engineer Equipment
Operator. It was noted that the ESG would be able to assist
further if the last name of the friend who was killed, the
approximate date of the incident, and the unit involved could
be provided.
The VA outpatient records dated from August 1988 to August
1989 reported the continued treatment of the veteran’s
sarcoidosis and his psychiatric complaints. By August 1989,
the veteran was assessed to have Stage III sarcoidosis and
chronic anxiety.
The veteran was afforded a VA physical examination in
September 1989. Although he was noted to be very anxious,
there was no diagnosis of a nervous disorder.
A VA discharge summary reported the veteran’s hospitalization
from March to May 1988. The veteran claimed that he had a
buddy in Vietnam named “[redacted]” who was killed. He
also claimed that his nerves were “shot” after he returned
from Vietnam. The veteran complained of exaggerated startle
responses, depression, suicidal ruminations, sleep
disturbances, recurrent dreams, nightmares, and intrusive
thoughts of the Vietnam War. The veteran’s mental status
examination revealed that his affect was appropriate to his
thought content. He had suicidal ideation for the past few
months, but denied any suicidal ideation on admission. His
speech was goal directed. There was no evidence of a formal
thought disorder. The veteran denied having any
hallucinations. He was fairly oriented with a fair memory,
but his insight and judgment were relatively poor. It was
noted that group sessions had allowed the veteran to reveal
intensely painful affects related to the loss of comrades in
Vietnam and a sense of personal responsibility and guilt. On
discharge, the veteran was less anxious and depressed. He
claimed to have had an improved ability to cope with memories
of the war. Diagnoses were given on Axis I for PTSD and a
history of mixed substance abuse; and on Axis III for
sarcoidosis, asteatotic eczema, hemorrhoids, missing teeth,
allergy to penicillin, and a history of exposure to Agent
Orange.
The veteran was given a private examination by the State of
New Jersey for a disability determination in November 1988.
The veteran claimed that he had been forced to leave his last
job because of his “stress syndrome”, weakness of his
muscles, and shortness of breath. The diagnoses were
sarcoidosis, mild obstructive/restrictive pulmonary disease
with chronic bronchitis (secondary to sarcoidosis and tobacco
abuse), liver function test abnormalities (may be due to
early alcoholic liver disease, sarcoidosis, or other causes
such as drugs), PTSD (Vietnam variety), alcohol abuse,
tobacco abuse, possible drug abuse, and moderate cushingoid
disturbance manifested by abnormal facies and elevated
glucose (secondary to Prednisone therapy).
At his hearing on appeal in February 1991, the veteran
testified that he participated in counter-insurgency
operations against the Viet Cong and North Vietnamese Army.
While he had been trained as a shore partyman, he claimed
that once he arrived in Vietnam he was tasked as a combat
engineer. The veteran testified that he had experienced
stressors that consisted of being shelled by mortars and
engaging in firefights while pulling guard duty at base
camps. He also claimed that he had been on a convoy that had
been ambushed. The veteran asserted he could hear bullets
pass near to him and watched a fellow soldier named “[redacted]”,
that he had been talking to, be killed. He stated that this
was the only soldier he knew who had been killed. After
returning from Vietnam, the veteran claimed that he had
experienced sleep disturbances, bad tempers, nightmares of
Vietnam, and night sweats. The veteran asserted that he
never sought treatment for his symptoms while in service
because he did not know he was suffering from PTSD. He
claimed that he started abusing drugs and alcohol while in
service and continued to do so afterwards in order to help
him sleep at night. The veteran testified that he had been
involuntarily hospitalized in 1972 or 1973 by his mother and
sister after they claimed he had tried to jump out of a
second story window. After the war, the veteran maintained
that he had to stop putting on his job applications that he
was a Vietnam veteran in order to get work. At the time of
the hearing, the veteran claimed that his symptoms consisted
of night sweats and being bothered by the Persian Gulf War.
He also asserted that he fought a lot with his wife. He
acknowledged that he was not being treated for his claimed
PTSD or receiving medication for it.
In January 1992, the RO wrote the Marine Corps Historical
Center. This organization was asked to confirm the veteran’s
unit of assignment and furnish a copy of the records of the
unit the veteran served with in Viet Nam. Additionally, a
request was made to confirm the death of [redacted].
This organization responded that copies of Marine Corps
casualty reports did not include the name of [redacted],
and that this name did not appear on the Viet Nam Veteran’s
War Memorial.
In May 1993, the RO sent the veteran a letter requesting that
he provide the last name of the soldier he referred to as
“[redacted]”, the date of his death, and name of the unit
involved. There is no record of the veteran responding to
this request.
The veteran was afforded a VA psychiatric examination in
November 1993. The veteran claimed that during his service
in Vietnam he had participated in a convoy that had
experienced a five minute firefight. He could remember
sleeping in a “hooch” and hearing incoming [no word follows
this] that caused damage to his company. The examiner noted
that the veteran had blocked out a great deal of his Vietnam
memories. The veteran asserted that he has been drug and
alcohol free since 1988. He acknowledged that since his
treatment for PTSD and substance dependence in 1988, his PTSD
related symptoms were far less severe. The examiner noted
that the veteran had no behavioral expression of his Vietnam
associated thoughts. The veteran claimed that he was not
terribly depressed nor had he attempted suicide. He
acknowledged that what really made him upset and depressed
were his financial difficulties.
The examiner opined that there was minimal evidence that the
veteran had participated in sustained combat. He found that
the veteran was unable to produce situations that were unique
to his service or events that few or no other veteran
experienced while there. The veteran did not appear to have
had any behavioral expression of PTSD, only subjective
sensations that were more acutely felt years ago then they
were now. The examiner found that the veteran’s history and
current symptomatology did not reach the dimensions that are
customarily required for a clinical diagnosis of PTSD. The
final diagnosis was alcohol dependency and intravenous drug
abuse in remission.
In VA medical records dated from June 1988 to December 1991,
it was noted that the veteran had received treatment for his
sarcoidosis, vision, psychiatric, and joint pain complaints.
It was recorded in August 1989, on a VA pulmonary outpatient
record, that the veteran had chronic anxiety.
II. Entitlement to Service Connection for PTSD.
The veteran has presented a claim which is well grounded
within the meaning of 38 U.S.C.A. § 5107(a). That is, he has
presented a claim which is plausible. The Board is also
satisfied that all relevant facts have been properly
developed, and that no further assistance is required to
comply with the duty to assist under 38 U.S.C.A. § 5107(a).
Under the applicable criteria, service connection may be
granted for disability resulting from disease or injury
incurred in or aggravated by service. 38 U.S.C.A.. § 1110
(West 1991). Service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. Presumptive periods are not
intended to limit service connection to diseases so diagnosed
when the evidence warrants direct service connection.
38 C.F.R. § 3.303(d) (1995).
Post-traumatic stress disorder. Service connection
for post-traumatic stress disorder requires medical
evidence establishing a clear diagnosis of the
condition, credible supporting evidence that the
claimed inservice stressor actually occurred, and a
link, established by medical evidence, between
current symptomatology and the claimed inservice
stressor. If the claimed stressor is related to
combat, service department evidence that the
veteran engaged in combat or that the veteran was
awarded the Purple Heart, Combat Infantryman Badge,
or similar combat citation will be accepted, in the
absence of evidence to the contrary, as conclusive
evidence of the claimed inservice stressor.
Additionally, if the claimed stressor is related to
the claimant having been a prisoner-of-war,
prisoner-of-war experience which satisfies the
requirements of § 3.1(y) of this part will be
accepted, in the absence of evidence to the
contrary, as conclusive evidence of the claimed
inservice stressor.
38 C.F.R. § 3.304(f) (1995).
All relevant statutes and regulations, to include 38 U.S.C.A.
§ 1154 and 38 C.F.R. § 3.304 mandate that an initial
determination must be made as to whether a veteran was
engaged in combat. See also Hayes v. Brown, 5 Vet.App. 60
(1993). If it is determined that a veteran was engaged in
combat, lay testimony from the veteran regarding putative
stressors must be accepted as conclusive, provided that the
testimony is satisfactorily credible; however, if VA
determines that a veteran did not engage in combat, lay
testimony by the veteran by itself is not sufficient to
establish that a putative stressor occurred. West v. Brown,
7 Vet App 70 (1994). If the veteran was not engaged in
combat, the service records must corroborate lay testimony as
to the facts and circumstances of an alleged stressor. 38
U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).
While the veteran was in Vietnam, the veteran was a shore
party man (equivalent to a stevedore in the civilian sector)
and an engineer equipment operator. Clearly, his duties were
not combat related. In other words, the veteran's work
details would not in the general course entail exposure to
combat. He did not receive any awards or commendations
related to combat service. Accordingly, the Board finds that
the veteran was not engaged in combat while he was in
Vietnam.
Nevertheless, the veteran has reported that he participated
in a convoy that had experienced a five minute firefight,
that he had engaged in firefights while pulling guard duty at
base camps, that the base he was stationed at was subjected
to shelling by mortars, and that he had watched two fellow
servicemen killed. In general, the BVA is not bound to
accept a veteran’s uncorroborated account of his Vietnam
experiences. Moreover, just because a physician or other
health professional accepts an appellant's description of his
Vietnam experiences as credible does not mean the BVA is
required to grant service connection for PTSD. The BVA has
the duty to assess the credibility and weight to be given the
evidence. Wilson v. Derwinski, 2 Vet.App. 614, 618 (1992)
(quoting Wood v. Derwinski, 1 Vet.App. 190, 192 (1991),
reconsideration denied per curiam, 1 Vet.App. 406 (1991)).
In this case, there has been no verification of the veteran’s
stressors. While he mentioned that he observed a fellow
serviceman, [redacted], being killed, he was unable to provide
any additional evidence to facilitate confirmation of this.
An attempt to confirm the stressors was made by the
Environmental Support Group. However, in a letter of August
1989, they noted that they were unable to verify any of the
veteran’s claimed stressors. Without any details of the
alleged incident such as the approximate date, the last name
of the friend who was killed, and what units were involved,
no further search for verification could be made. Moreover,
the name of the other veteran he witnessed being killed in
Viet Nam could also not be confirmed. This individual’s name
did not appear on documentation of those servicemen who were
killed in Viet Nam. In short, the record reveals no
plausible basis upon which to verify the incidents reported
by the veteran, and the service record does not corroborate
the veteran's reported stressors. In the absence of a
verifiable stressor, service connection for PTSD may not be
granted.
ORDER
Entitlement to service connection for PTSD is denied.
REMAND
The undersigned notes that the regulations pertaining to
rating respiratory disabilities were revised effective
October 7, 1996 and those pertaining to psychiatric
disabilities were revised effective November 7, 1996. The
Court has held that where the law or regulation changes after
a claim has been filed or reopened but before the
administrative or judicial appeal process has been concluded,
the version most favorable to the appellant will apply unless
Congress provided otherwise or permitted the Secretary to do
otherwise and the Secretary did so. Karnas v. Derwinski, 1
Vet. App. 308, 313 (1991).
The revised regulations pertaining to rating mental disorders
are cited, in pertinent part, below:
General Rating Formula for Mental
Disorders:
Total occupational and social impairment,
due to such symptoms as: gross impairment
in thought processes or communication;
persistent delusions or hallucinations;
grossly inappropriate behavior;
persistent danger of hurting self or
others; intermittent inability to perform
activities of daily living (including
maintenance of minimal personal hygiene);
disorientation to time or place; memory
loss for names of close relatives, own
occupation, or own name. 100
Occupational and social impairment, with
deficiencies in most areas, such as work,
school, family relations, judgment,
thinking, or mood, due to such symptoms
as: suicidal ideation; obsessional
rituals which interfere with routine
activities; speech intermittently
illogical, obscure, or irrelevant; near-
continuous panic or depression affecting
the ability to function independently,
appropriately and effectively; impaired
impulse control (such as unprovoked
irritability with periods of violence);
spatial disorientation; neglect of
personal appearance and hygiene;
difficulty in adapting to stressful
circumstances (including work or a
worklike setting); inability to establish
and maintain effective relationships.
70
Occupational and social impairment with
reduced reliability and productivity due
to such symptoms as: flattened affect;
circumstantial, circumlocutory, or
stereotyped speech; panic attacks more
than once a week; difficulty in
understanding complex commands;
impairment of short- and long-term memory
(e.g., retention of only highly learned
material, forgetting to complete tasks);
impaired judgment; impaired abstract
thinking; disturbances of motivation and
mood; difficulty in establishing and
maintaining effective work and social
relationships. 50
Occupational and social impairment with
occasional decrease in work efficiency
and intermittent periods of inability to
perform occupational tasks (although
generally functioning satisfactorily,
with routine behavior, self-care, and
conversation normal), due to such
symptoms as: depressed mood, anxiety,
suspiciousness, panic attacks (weekly or
less often), chronic sleep impairment,
mild memory loss (such as forgetting
names, directions, recent events).
30
Occupational and social impairment due to
mild or transient symptoms which decrease
work efficiency and ability to perform
occupational tasks only during periods of
significant stress, or; symptoms
controlled by continuous medication.
10
A mental condition has been formally
diagnosed, but symptoms are not severe
enough either to interfere with
occupational and social functioning or to
require continuous medication. 0
38 C.F.R. § 4.130 (Effective November 7, 1996).
The regulations pertaining to sarcoidosis are as follows:
Cor pulmonale, or; cardiac involvement
with congestive heart failure, or;
progressive pulmonary disease with fever,
night sweats, and weight loss despite
treatment.
100
Pulmonary involvement requiring systemic
high dose (therapeutic) corticosteroids
for control. 60
Pulmonary involvement with persistent
symptoms requiring chronic low dose
(maintenance) or intermittent
corticosteroids. 30
Chronic hilar adenopathy or stable lung
infiltrates without symptoms or
physiologic impairment. 0
Or rate active disease or residuals as
chronic bronchitis (Diagnostic Code 6600)
and extra-pulmonary involvement under
specific body system involved.
38 C.F.R. § 4.97, Diagnostic Code 6846 (1995).
In view of the foregoing, and in order to evaluate the
veteran’s claim, the case is REMANDED to the RO for the
following development:
1. The RO should obtain the names and
addresses of all medical care providers
who treated the veteran since September
1995. After securing the necessary
release(s), the RO should obtain any
records not already contained in the
claims folder, to include those from the
VA outpatient clinic. Once obtained, all
records must be associated with the
claims folder.
2. After the above has been completed,
the veteran should be afforded VA
general, pulmonary, and psychiatric
examinations. The purpose of these
examinations is to determine the severity
of any claimed disability. It is
imperative that the examiners review the
claims folder prior to the examinations.
All indicated tests and studies should be
accomplished, especially where needed to
arrive at a diagnosis or assess a
disability.
a. Special instructions for the
psychiatric and pulmonary examiners:
They should review the revised
criteria for rating pulmonary and
psychiatric disabilities as
discussed above, together with the
criteria in effect for pulmonary
disabilities prior to October 7,
1996, and psychiatric disabilities
prior to November 7, 1996.
Pulmonary function studies should be
accomplished. The examiners should
render an opinion as to what effect
any disability found has on the
veteran’s social and industrial
adaptability. The examiners should
review the revised criteria cited
above, if such criteria are not
otherwise available to them. A
Global Assessment of Functioning
(GAF) should be provided, and the
psychiatric examiner should explain
the meaning of any score. If
substance or alcohol abuse is
present, it should be determined
whether it is primary in nature or
the result of an existing
disability.
b. General Medical Examiner: This
examiner should review all systems
complained of by the veteran, except
for those for which special
examinations have been requested.
Particular attentions should be
directed toward determining the
correct diagnosis and severity of
any existing hemorrhoids, skin
condition, left shoulder condition,
low back disability, general joint
impairment (including the hands),
liver condition and sinuses. Where
a disability of a joint is noted, it
is imperative that a diagnosis be
given as well as all findings,
including ranges of motion. Normal
ranges of motion for any impaired
joints should be specified. In
addition, the examiner should be
asked to determine whether any
disabled joint exhibits weakened
movement, excess fatigability, or
incoordination attributable to the
service connected disability; and,
if feasible, these determinations
should be expressed in terms of the
degree of additional range of motion
loss or favorable or unfavorable
ankylosis due to any weakened
movement, excess fatigability, or
incoordination. Finally, the
examiner should be asked to express
an opinion on whether pain could
significantly limit functional
ability during flare-ups or when the
affected joint is used repeatedly
over a period of time. This
determination should also, if
feasible, be portrayed in terms of
the degree of additional range of
motion loss or favorable or
unfavorable ankylosis due to pain on
use or during flare-ups.
3. Upon receipt of the examination
reports, the RO should review the reports
to ensure that they are adequate for
rating purposes. If not, the RO should
return any inadequate examination report
to the examining physician and request
that all questions be answered.
4. When the requested development has
been completed, the case should be
reviewed by the RO and a rating action
prepared which lists all of the veteran’s
disabilities and the percentage
evaluation assigned each disability. If
the determination on the issue of
entitlement to a permanent and total
disability rating for pension purposes
remains adverse to the veteran, he and
his representative should be furnished
with a Supplemental Statement of the Case
and given a reasonable opportunity to
respond. In doing so, the RO should
specifically cite the new regulations and
criteria regarding mental disorders and
pulmonary disorders (to include
sinusitis, if applicable.) The RO should
also determine whether the prior
regulations or the new regulations are
most favorable to the veteran.
Thereafter, subject to current appellate
procedures, the case should be returned
to the Board for further appellate
consideration, if appropriate.
The veteran need take no further action until he is informed.
The purpose of this REMAND is to obtain additional medical
information. No inference should be drawn regarding the
final disposition of the claim as a result of this action.
I. S. SHERMAN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
Supp. 1996), a decision of the Board of Veterans’ Appeals
granting less than the complete benefit, or benefits, sought
on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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